On Monday morning, the National Labor Relations Board will begin its hearing into charges that the Times Union violated labor law when it walked employees out of the building when the company was supposed to be negotiating layoff criteria with the Guild.

The case will be prosecuted by counsel from the NLRB, which investigated the complaint and filed the legal charge. The union will also have a lawyer participating. The company will have its own attorney, and the case will be heard by an administrative law judge.

The hearing will be held in a third floor room at the NLRB offices in the Leo O’Brien Federal Building in downtown Albany. It begins at 10 a.m. Monday and is open to the press and to the public. It is expected to take several days.

The administrative law judge will decide the case. If the Times Union is found to have violated labor law, it will be ordered to restore the affected employees to the payroll and to negotiate properly and in good faith.

Facts on NLRB charge filed against the Times Union

Q: What happened?

A: The National Labor Relations Board determined, after an investigation, that the Times Union broke the law when it walked employees out shortly after negotiations began over the criteria for layoffs.

Q: Publisher George Hearst told the Capital District Business Review “the panel merely determined that a hearing should be held to investigate the matter further.” Is this true?

A: No. The NLRB determined that the law was broken and filed a charge. The case will be prosecuted by counsel from the NLRB. This is the legal equivalent of an indictment in a criminal case: The party is not found guilty, but sufficient evidence has been found to hold a trial. Metaphorically speaking, this would be like a bank robber who is on trial saying “the police are merely continuing their investigation.” It is much more serious than the publisher’s comment would lead you to believe.

Q: Mr. Hearst told the Daily Gazette that if he lost, he’d merely bring the same people back to work and lay them off again. What’s the union response?

A: As I told the Gazette, it is stunning to hear that if the Times Union is found guilty of breaking the law, it would break the law again. A newspaper should hold itself to a much higher standard.

Q: The Company says this case will drag on for months, possibly years. Is that true?

A: Yes, if the Times Union chooses to drag it out. If convicted, the Times Union could appeal to the NLRB in Washington, D.C. If the conviction is upheld, the TU could then appeal to the U.S. Court of Appeals. All that time, however, the back pay owed to the workers would continue to accrue.

Q: I’m glad the layoffs are over. Why not just let this go?

A: We have a moral and legal obligation to represent all our members. We cannot tell our laid-off colleagues: “We know the Times Union broke the law, but we’re going to let them away with it.” Also, there is no guarantee layoffs won’t occur again in the future, and the Company cannot legally pick and choose whomever it wants to lay off without negotiation so this does affect all employees now and in the future. And finally, and this is a major reason for the NLRB to pursue this case, allowing the Times Union to break the law this way would set a precedent for other companies to walk out workers too rather than negotiate criteria in good faith.

Q: The publisher says the company presented criteria in the layoffs, and the union never did. Is that true?

A: No, it is not. We presented proposals on Aug. 19 and on Sept. 10. In fact, the final words spoken at the bargaining table prior to the company declaring impasse in negotiations over layoffs were these by Mark Batten, a Boston area lawyer hired to represent the TU: “I will have to discuss this (Guild proposal) over lunch break to see if there is a counterproposal possible.” Rather than reply to our proposal, the Company declared an impasse.

“One quality underlying successful businesses is the bond of trust they have built with consumers, which they invite by displaying integrity. … Clear and fair rules of the road need to be in place for business, just as they are for traffic. And those who violate the rules need to be held to account.’’

-­­Times Union Editor Rex Smith in a March 13 column.

http://albany.bizjournals.com/albany/stories/2010/04/12/daily37.html

The Times Union broke the law when it walked workers out of the newspaper’s offices when it was supposed to be negotiating criteria for layoffs, the National Labor Relations Board has charged.

The newspaper is now charged with violating labor law and will face a trial scheduled for Monday, May 17, at the Leo O’Brien Federal Building in Albany.

“From the moment it happened, we said the Times Union’s actions were a blatant violation of the law,” said Guild President Tim O’Brien. “Now the National Labor Relations Board has investigated and come to the same conclusion. This is no longer an argument between the newspaper management and the union. This is the equivalent of an indictment of the newspaper’s management.”

A 22-year employee of the newspaper, O’Brien said he had never been more stunned by the actions of the company. Last July, TU managers walked employees to the personnel office, where a security guard was stationed, and told them their careers were over.

Editor Rex Smith then announced to the newsroom that the workers were laid off, and the newspaper’s story the next day called the discharges layoffs. The Company then claimed it was continuing to bargain the layoffs in good faith, but it made not one change before announcing those talks at an impasse.

The NLRB investigation took time but came to the same conclusion the union did: The Times Union broke the law.

“A newspaper plays a very important role in the community. It holds people in power accountable for their actions,” O’Brien said. “Now the Times Union itself must be held accountable for its actions.”

If the administrative law judge finds the Times Union guilty as charged, the newspaper will be ordered to restore a dozen laid-off workers back to the payroll and to resume good-faith negotiations over the criteria.

“The Times Union must bargain with us and not simply present us with a fait accompli,” O’Brien said. “That’s not legal. We take no pride in seeing the Times Union charged, but a newspaper of all businesses should not believe it is above the law.”

The Guild’s Executive Board will meet at 5:30 p.m. today at its offices in the Albany Labor Temple and will set a date for a membership meeting to discuss the legal action and to elect two new members to our Executive Board.

A young colleague asked me a question that might be on other people’s minds as well: What’s the benefit of having a union under the current circumstances?

Here is essentially how I replied:

I know things seem quiet. There are no more talks of layoffs or benefit cuts. Why do we need a union?

And I’d answer that question this way: Things are quiet now because we have a union, and the benefits aren’t being cut any more because the company literally cannot do so.

Almost a year ago, as you know, the company ended our negotiations and imposed working conditions. Under the law, those conditions must come from the company’s final contract offer. Once imposed, the company can make no further changes without negotiation with the union. Any and all other benefits remain the same.

That means the company cannot cut people’s pay. Without a union, they could. (Remember, they wanted to eliminate the “no pay cuts” clause but did not succeed.)

The company could not decide to raise the $750 health insurance deductible to $1,000. Without a union, they could.

Same with vacations, differentials for working nights or any other benefit. You have a union, they cannot be cut. No union, they can.

When the company decided to lay people off, remember they initially did not want to offer a voluntarily buyout. We pushed and got one. Because we did, some people left voluntarily with extra cash. Because we have a union, fewer people got laid off. No union? More layoffs. No voluntary buyouts.

I am amazed how swiftly people forget that.

And because we have a union, those who got laid off got severance pay and health-care coverage. Again, no union, those things are not guaranteed.

Let me tell you two stories about where specific benefits came from. Reporter Brendan Lyons, after having his first child, asked why we did not get any paid time off and had to use vacation. I took that issue to the bargaining table, and now we get a paid week. The benefit wasn’t just handed to us; it was bargained.

Carol Farley, who works in advertising, came to me and ask why managers but not Guild members got financial help to adopt a child. Carol, along with Mark McGuire and another employee, came to the table and argued passionately that adoption of a child was no time to discriminate between exempt and Guild employees. They were convincing, and the benefit exists today.

Without a union, no company comes to employees and says “What benefits would you like us to add?”

Even in the imposed conditions, we won some new benefits. For example, people can now donate time to a seriously ill colleague. This benefit arose when we had several co-workers died of cancer, and people wanted to donate time but were not allowed.

All these benefits continue to exist because the union is here to protect them.

We’re still active in many other ways. We helped an advertising employee who was disciplined for not selling enough online ads (even as she brought in six-figure print ads.) There is a worker in circulation I am helping now. There are several other issues in circulation I am dealing with.

If you want to talk to someone about why the union still matters, talk to Mark and Tina DeCenzo. They will tell you flat out Mark is still here thanks to me and the Guild. The TU wanted to lay Mark off and outsource his job. With his help, we convinced the company he was doing more work than he was credited for and the Connecticut print shop wasn’t up to his standards.

Or talk to some of the folks who were laid off. They still think highly of the union. They got severance and health care for months, and we are still fighting for them because walking people out when we were negotiating criteria is illegal. (That’s not just me. The National Labor Relations Board is about to charge the TU with breaking the law.)

The Guild was and is willing to be flexible on the issue of seniority. We offered to let the company identify strong newer employees to keep and older workers with weaker skills to let go. We are and continue to be willing to go further. But we also think about the impact of being laid off late in life, when your odds of finding a new job are slim and your need for health care is great. We know of one laid-off employee who has diabetes, has been unable to find work and is about to lose health care. That’s a formula that can lead to losing a home or bankruptcy. Should seniority be the decisive factor? No, but I’d argue it should be given some weight.

I was, by the way, the last one hired when the company announced years ago it was closing the Knickerbocker News and merging it into the TU. I thought I’d lose my job. It’s a scary feeling one never forgets.

So, yes, there are still great benefits to the fact the union is here. Without us, the company could remove those benefits at any time. Even under imposed conditions, they cannot.

-Tim O’Brien.